CASE OF GURBANOV v. AZERBAIJAN
(Application no. 10616/17)
7 September 2023
This judgment is final but it may be subject to editorial revision.
In the case of Gurbanov v. Azerbaijan,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Krzysztof Wojtyczek, President,
Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 10616/17) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 31 January 2017 by an Azerbaijani national, Mr llgar Shikh-Ali oglu Gurbanov (İlqar Şıx-Əli oğlu Qurbanov – “the applicant”), who was born in 1959 and lives in Baku, and who was represented by Mr F. Agayev, a lawyer based in Azerbaijan;
the decision to give notice to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov, of the complaint under Article 6 § 1 of the Convention and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 4 July 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicant’s complaint under Article 6 of the Convention that he had been notified belatedly of the final cassation hearing in an administrative dispute initiated by him.
2. The applicant was involved in administrative proceedings relating to his dismissal from the Ministry of Foreign Affairs.
3. In final instance, the Supreme Court held hearings on 25 May and 24 June 2016, which were adjourned, and during the last hearing on 5 July 2016 delivered a final judgment dismissing the applicant’s cassation appeal. Neither the applicant nor his representative was present at any of the hearings. A copy of the envelope submitted by the applicant shows that a summons dated 24 June 2016 concerning the final hearing of 5 July 2016 was delivered to the applicant on 12 July 2016.
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
4. The applicant complained that he had been unable to attend the final hearing of the Supreme Court because he had been informed of it belatedly, in breach of his right to a fair trial as provided for in Article 6 § 1 of the Convention.
5. The Government submitted that while the Supreme Court had held three hearings, two of which had been adjourned, the applicant had complained about the belated notification concerning the final hearing only. According to them, this demonstrated that the applicant had been duly informed of the hearings but had deliberately failed to attend them. They argued that the applicant and his lawyer had participated in the proceedings before the first-instance and appellate courts; therefore, the proceedings before the Supreme Court had been conducted fairly even without their presence as that court dealt only with points of law and did not examine the facts of the case. They further argued that the postal stamp on the copy of the envelope submitted by the applicant raised serious doubts as to its authenticity. Lastly, the Government stated that the applicant’s absence from the final hearing had not led to a disadvantage which was likely to affect his position, as the defendant had not participated in that hearing either.
6. The applicant maintained his complaint.
7. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
8. The relevant general principles have been summarised, among other authorities, in Andrejeva v. Latvia ([GC], no. 55707/00, §§ 96-102, ECHR 2009) and Gankin and Others v. Russia (nos. 2430/06 and 3 others, §§ 25‑28, 31 May 2016).
9. Turning to the circumstances of the present case, the Court observes that Article 96.4 of the Code of Administrative Procedure (“the CAP”), as in force at the material time, required the Supreme Court to hold an oral hearing in all cases where a cassation appeal had been declared admissible. Pursuant to Article 62 of the CAP, the domestic courts were under an obligation to send summonses to the parties at least ten calendar days before the date of the oral hearing.
10. It is true that in cassation proceedings the Supreme Court deals with questions of law and does not examine evidence or assess the facts of the case. However, at the relevant time, the CAP enshrined the right of the parties to the proceedings to present their arguments orally. With that in mind, the Government cannot argue that the obligation to inform the applicant and his lawyer about the hearing did not apply as the cassation court was dealing only with points of law.
11. It is not entirely clear from the case file why the Supreme Court twice adjourned the examination of the case. The parties have not submitted copies of the minutes of the hearings and the applicant has not made any submissions in that respect. The Court observes that in its judgment delivered on 5 July 2016 the Supreme Court noted that, despite having been duly notified of the hearing of that same day, the parties had failed to appear. It is, however, evident from the copy of the envelope submitted by the applicant that the summons to the Supreme Court’s final hearing was delivered to the applicant’s lawyer after the hearing had already taken place (see paragraph 3 above).
12. Although the Government expressed doubts as to the authenticity of the envelope indicating the belated delivery of the notification letter and produced a copy of the summons issued on 24 June 2016, the Court notes that the latter was not postmarked and no other evidence showing that it had actually been sent to the applicant or his lawyer or otherwise delivered to them in a timely manner was provided. Lacking any evidence of proper notification, the Court accepts the applicant’s submissions that he was not aware of the date and venue of the final cassation hearing, and that this prevented him from attending and defending his rights (compare Abbasov v. Azerbaijan, no. 24271/05, § 29, 17 January 2008; Maksimov v. Azerbaijan, no. 38228/05, § 37, 8 October 2009; Pirali Orujov v. Azerbaijan, no. 8460/07, § 41, 3 February 2011; and Religious Community of Jehovah’s Witnesses and Hansen v. Azerbaijan, no. 52682/07, § 28, 30 January 2020).
13. It follows that the proceedings before the Supreme Court did not comply with the requirement of fairness. There has accordingly been a violation of Article 6 § 1 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
14. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.
15. The Government submitted that the applicant’s claim was unsubstantiated and excessive.
16. The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation and that compensation should thus be awarded. However, the amount claimed is excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 1,000 under this head, plus any tax that may be chargeable on that amount.
17. The applicant did not submit a claim in respect of costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
(a) that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable on the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 7 September 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv Tigerstedt Krzysztof Wojtyczek
Deputy Registrar President